Environmental Hearing Board - Standard of Review
The EHB recently issued a decision in TRRAAC v. DEP, et al, EHB Docket No 2008-315-L, addressing the EHB's de novo review of DEP actions. DEP approved a remedial investigation and cleanup plan for a site in Lancaster County. TRRAAC appealed the approval. TRRAAC noted in its pre-hearing memorandum that it intended to call a DEP inspector as a witness at the hearing. The DEP employee was not involved in the review of the action under appeal. Clean up at the site commenced and materials from the site were disposed of at a landfill. The DEP employee he was involved in inspections at the landfill.
DEP filed a motion in limine seeking to prohibit TRRAAC from calling the DEP landfill inspector. DEP argued that the inspector had no part in review of the remedial investigation and clean up plan, rather his involvement related to implementation of the clean up plan. Issues relating to the implementation of the clean up plan have no bearing on an appeal of DEP's review and approval of that plan.
The EHB held that all evidence up to the time of the hearing is potentially relevant. The EHB cited 35 P.S. Section 7514(c) for the proposition that a DEP action is not final as to the person taking the appeal, until the EHB decides that the action is final. DEP focused on the action under appeal itself, the clean up plan, as the issue and viewed the issues TRRAAC wanted to address as separate compliance issues. The EHB took the position that issues related to the approval might be borne out by subsequent evidence, not before the Department at the time it took action.
The EHB determined that its focus should properly be on the appealed action itself, rather that DEP conduct in completing its review. Details regarding the nature of DEP's review are not as important as whether the decision itself was correct, as such pointing out harmless errors in the review process, is unproductive. The EHB does not conduct a record review, rather it creates its own record.
The EHB distinguished its decision in this case from CRY v. DER, 639 A.2D 1265 (Pa. Cmwth. 1994). In CRY, the appellant appealed the issuance of a permit for a landfill. The appellant in CRY sought to introduce evidence relative to the fact that the liner was torn during its installation, in an effort to argue the permit should not have been issued. The EHB excluded the evidence. The Court determined that evidence relative to the tear in the liner was irrelevant, it had no bearing on whether the permit should have been issued.
The EHB provided an example of when evidence obtained after DEP acts, may be relevant to an appeal of that action. If DEP were to approve a dam permit, which approval gets appealed, the dam is later constructed and subsequently fails. Evidence relative to the cause of the failure may be relevant to the appeal of the permit for the dam. The later evidence may go to the propriety of the decision to issue the permit, rather than an unrelated compliance issue as was the case in CRY. Blanket prohibitions of evidence, based on the time the evidence came into existence, are improper.
